We have previously criticized arbitrary excesses of “best practices” in the trial courts and have complimented the Appellate Division when it ameliorates injustices. In Werthmann v. New Jersey Manufacturers Ins. Co., decided Oct. 5 by the Appellate Division, we believe that both courts got it wrong.
In an automobile negligence case, the defense had been granted three adjournments after two adjournments by the trial court. On the sixth listing, plaintiffs’ counsel for the first time requested a further adjournment because his psychiatric expert was not available and the case could not be proven without him. Counsel agreed to have the testimony videotaped and used de bene esse. The judge refused, stating that “the doctor should have been on notice or in the can (videotaped) before this.” The case was dismissed with prejudice.
Counsel certified that he had been told to appear on the hearing date, but did not have his witness notified because defense counsel had again written to the court and asked for the case to be on standby because the defense attorney had older cases listed for trial. When plaintiffs’ counsel was told that the case would actually be heard, he had only two hours to arrange for his medical witness to appear. The judge called this a misrepresentation. “What plaintiff chose to do is he chose to be unprepared. He didn’t believe he would be reached. He was fully aware of the Court’s trial listing… and then when called in for trial by the court, tried to stonewall the court and profess that he was unprepared.”
The Appellate Division quoted earlier decisions to explain that the 2000 best practices rules were promulgated “to establish firm and meaningful trial dates, to restore the public’s faith in expeditious and efficient litigation and control dilatory litigation tactics by providing the trial courts with the tools to manage litigation.” But where is individual justice in this discussion?
Plaintiffs’ counsel argued all that could have been presented, but was met with rejection, even of a lesser penalty. The dismissal is likely to result in another suit clogging the system, with both alleged attorney malpractice and the underlying negligence case as its subjects. The putative auto tortfeasor and its carrier will walk away unscathed. The court system will be spared nothing. Justice for the plaintiffs will be delayed, or lost.
In this case, the judge could have granted a short additional adjournment, assessed a monetary sanction, directed that there be an immediate videotaped deposition — and then called for the next prepared case, so that valuable court time would not be wasted. The plaintiffs would not be lost in the shuffle.
The rule itself is hopelessly one-sided, favoring defendants. If a defendant did what plaintiffs’ counsel did, and the defenses were stricken, there would be a proof hearing in which plaintiff would have to prove a meritorious case with cross-examination of plaintiff’s witnesses. Perhaps with a lack of affirmative defense witnesses, a slightly higher verdict would be entered, but there would be no draconian penalties. But when a plaintiff’s claim is stricken, there is a total loss, absent a follow-up malpractice case. If the attorney has little or no malpractice insurance, there is the potential of financial ruin.
There are considerations more important than court calendars, and justice is one of them. Attorneys are human and make mistakes that should not be visited on their clients. If there are repeated infractions, there are ethics committees to deal with the problem. Dismissals with prejudice should be reserved for the most egregious cases, where there has been active participation by the party or where there is manifest prejudice to the other side. The result in this case is an injustice to both plaintiffs’ counsel and the clients that we hope the Supreme Court will correct.